Admire Chinamhora v Mazowe Mine

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO LC/H/144/13
HELD AT HARARE 13TH FEBRUARY 2013
CASE NO
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IN THE LABOUR COURT OF ZIMBABWE	  JUDGMENT NO LC/H/144/13

HELD AT HARARE 13TH FEBRUARY 2013	 CASE NO LC/H/296A/07

ADMIRE CHINAMHORA					Applicant

MAZOWE MINE						Respondent

Before The Honourable G Musariri, President

For Applicant		Mr A.K. Maguchu, Attorney

For Respondent		Mr S Bhebhe, Attorney

MUSARIRI, G:

On 3rd September 2010 this Court made an order which directed Respondent to reinstate Appellant’s employ without loss of salary or benefits. In the event that reinstatement was untenable, Respondent was directed to pay Applicant damages for loss of employment.  On 21st  November 2012 Applicant filed this application for quantification of damages.  Respondent opposed the application.

Applicant’s claim was calculated in United States Dollars (USD) as follows:

Back-pay

January 2009 – September 2010			8 137.55

Damages

$226.83 x 12   	2 722.32 x 10			27 223.20

Total								US$35 360.75

Respondent conceded a package calculated thus:

Back-pay

January 2009 - September 2010			3 700.00

Damages

2 years’ salary at the rate paid in 				x

Zimbabwean (ZW) dollars				(unquantified)

Total								US$3 700.00 + x

I will deal with the matter under the subtitles “Back-pay” and “Damages” respectively.

Back-pay

Applicant supported his claim by his own affidavit.  Respondent submitted that it relied on figures from the relevant National Employment Council (NEC).  Applicant argued that quantification is a matter of fact.  Accordingly evidence needed to be led supporting the contrasting figures.  His evidence was in the form of a sworn statement being Applicant’s affidavit.  Respondent not having produced evidence in rebuttal, Applicant’s figures are effectively unopposed.  I am persuaded by Applicant on this point.  Once Applicant supported his figures by affidavit it became necessary for Respondent to rebut same in a similar fashion.  It was not enough to simply say, through their

Attorney, that relied on figures from the NEC.  They ought to have put in an affidavit stating why they disputed Applicant’s figures and explaining the figures they relied on.

Damages

Applicant claimed ten (10) year’s salary as damages for loss of employment. It was pointed out that he was aged 45 years.  He has not managed to get alternative employment since his dismissal in 2006.  Apparently this despite diligent search.   However I am unable to grant Applicant’s prayer for damages.  He basically wanted to be paid up to retirement age.  That is not the basis upon  which damages are calculated in labour matters.  They are calculated to cover the period within which a dismissed employee is reasonably expected to find alternative employment.  The idea is not to turn the ex-employer into a welfare agency.  In any event there is no precedent where 10 years’ wages have been awarded as damages.  However Applicant must have suffered some damages.  Respondent conceded that Applicant is entitled to 2 years’ salary as damages.  However it argued that same should be paid in the Zimbabwean Dollars (ZWD).  This was based on that fact that Applicant was dismissed when ZWD was the sole legal tender in Zimbabwe.

I disagree with Respondent.  The rate to be used in calculating damages is one obtaining on the date of the reinstatement order.  This was confirmed in the case of:

VIP Sports v Kanyoza SC 69/06 where Sndura JA, as he then was, at p 3, stated that,

“… the damages for premature termination of his employment should have been  calculated on the basis of the salary payable to him on 31 August 2004, when the arbitrator ordered that he be reinstated  or paid damages,…”

The reinstatement order in casu was made when USD had become legal tender.  Applicant claimed ten (10) years’ salary in the sum of US$27 223.20.  Two (2) years’ salary amounts to a fifth thereof.  This translates to a figure of US$5 444.64.   I will proceed to grant the same.

Wherefore it is ordered that,

Respondent shall pay Applicant an amount of US$8 137.55 to cover back-pay and benefits;

Respondent shall pay Applicant an amount of US$5 444.64 as damages for loss of employment; and

Each party shall bear its own costs.

G. MUSARIRI

PRESIDENT